Appeal from the Circuit Court for the Sixteenth Judicial
Circuit, Kane County; the Hon. JOHN S. PETERSEN, Judge,
presiding. Decree affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is a suit seeking construction of a will and a declaratory judgment that plaintiff is owner in fee simple absolute of certain real estate. The issue before the court is the applicability of the rule in Shelley's case to a certain devise contained in the will of Effie Seymour, who died in 1939. If the rule is applicable under the language of the will, its abrogation by statute in 1953 (Ill Rev Stats 1963, c 30, pars 186, 187), will not affect the determination here as the statute has no retroactive application. Baker v. Forsuman, 15 Ill.2d 353, 359, 155 N.E.2d 24 (1959).
After making certain specific bequests, Effie Seymour provided in paragraphs five and six of her will, in pertinent part, as follows:
"Fifth: I give, devise and bequeath all the rest and residue of my estate real or personal, wherever situate, including all my right, title and interest in and to the real estate known as . . ., to J. Harter Kirkpatrick . . . as trustee, to be held in trust for the benefit of my son William H. Seymour during his lifetime and upon his death to be paid to his lawful heirs. . . ."
"Sixth: I give my said trustee . . . full power and authority to sell, rent or improve both real estate and personalty and to sign and deliver all necessary instruments of transfer . . . to rent, mortgage, repair, alter or sell any real estate the same as I might do if living . . . nor shall any order of court be necessary in making any such sale and any real estate or personalty so sold shall be unencumbered by this trust, I direct that said income from this trust shall be payable only to said named beneficiary or his legally appointed guardian for his sole use. The trustee may in his discretion pay out of the principal to said beneficiary if necessary to his support. I direct said trustee pay for a proper burial for my son William H. Seymour. . . ."
As indicated, Effie Seymour died in 1939; her son, William, died in 1960 leaving a will in which he devised all of his property to his wife, the plaintiff, who brought this suit seeking a construction of Effie Seymour's will and a judgment declaring that her husband took a fee interest under his mother's will, capable of being devised to her. This contention is premised upon the applicability of the rule in Shelley's case to the mother's will, converting the remainder to William's lawful heirs into a remainder in fee in William. The trial court held that the rule in Shelley's case was applicable and that William thus took the remainder as well as the life estate, which constituted the fee; and that, therefore, he had the power to dispose of the same by will. The defendants, the heirs of William other than his widow, prosecuted this appeal.
Stated simply, the rule in Shelley's case is that whenever, in the same instrument, an estate of freehold is limited to the ancestor, and a remainder to his heirs, either mediately or immediately, in fee, or in tail, the words "heirs" is one of limitation of the estate, and not of purchase, and the ancestor takes the fee. People v. Emery, 314 Ill. 220, 223, 145 N.E. 349 (1924). Whenever the grants of the freehold and remainder are contained in the same instrument, there are three requisites for application of the rule: First, a freehold estate must be granted to the ancestor; second, a remainder must be limited to his "heirs", general or special, as such that is, by the name of heirs and without explanation as meaning sons, children, etc.; and third, the two estates, freehold and the remainder, must both be of the same quality, that is, both must be either legal or equitable. People v. Emery, ibid.; Baker v. Scott, 62 Ill. 86, 93, 94 (1871).
[4-7] The rule in Shelley's case is a rule of property not a rule of construction. Lord v. Comstock, 240 Ill. 492, 499, 88 NE 1012 (1909); Hageman v. Hageman, 129 Ill. 164, 168, 21 N.E. 814 (1889); Baker v. Scott, supra; Carey and Schuyler, Illinois Law of Future Interests, sec 93, pp 151, 152 (1941). It matters not that the creator of the instrument in question manifested an intent that the property pass in a manner different than that resulting from the application of the rule. That is, in fact, the necessary result of the rule. It operates on the remainder alone, taking it from the heirs and vesting it in the ancestor; and although the preceding estate of freehold is a circumstance necessary to its application, such estate is not directly affected by it. The ordinary rules of construction are applicable only in first determining if there is a "freehold"; if there is a remainder in the "heirs," and if the two estates are of the same quality. These determinations are made wholly independently of the rule in Shelley's case, itself. 1 Hayes, Conveyancing, 542-545 (5th ed 1840).
It is not disputed that the will of Effie Seymour granted an equitable life estate, and thus a freehold, to her son, William. The defendants contend, however, that the second and third requisites for the application of the rule are not present. They argue that the second requisite is absent because the word "heirs" was intended to designate certain persons other than those ordinarily encompassed within the meaning of the word, and it was thus used as a word of "purchase" not of "limitation"; and that the third requisite is missing in that the life estate was equitable and the remainder was legal. Hence, they urge that the two estates were not of the same quality. Lastly, they contend that the plaintiff is guilty of laches and is further estopped from asserting the application of the rule in Shelley's case.
The word "heirs" is a technical word, and when used it is presumed to have been used in its strict technical sense. If it is to be given a meaning other than its strict legal meaning, it must clearly and affirmatively appear that the author of the instrument did not intend that the word "heirs" be used in its proper and legal sense. Spicer v. Moss, 409 Ill. 343, 354, 355, 100 N.E.2d 761 (1951); Carpenter v. Hubbard, 263 Ill. 571, 581, 582, 105 N.E. 688 (1914).
Defendants contend that since Effie Seymour's will contained two specific bequests of $100 each to her two step-daughters, described as "my daughters," she thus evidenced an intent that the two named step-daughters were to take under her will as her own son's "heirs", although not technically such. If this intention were clearly manifested, we concede that the word "heirs" would not have been used in its technical and legal sense and the rule in Shelley's case could not be applied. However, it is not readily apparent to us how the two specific bequests of $100 each to her respective step-daughters, designated as "daughters," manifests an intent that they are to be included in the devise of the entire residue of her estate to the "lawful heirs" of her son upon his death. We think rather, that such bequests to each of her step-daughters would indicate an intent to exclude them from the residuary estate; and that the designation of her son's "lawful heirs" as the ones to ultimately take upon his death indicated that Effie Seymour had exhausted her specific wishes by prior bequests and when disposing of her residuary estate, she was content to let the law then take its course. Robertson v. Eastern Long Island Hospital, 28 Ill.2d 483, 490, 491, 192 N.E.2d 895 (1963).
That the word "heirs" is preceded by the word "lawful" does not affect its ordinary or technical meaning. Wilson v. Harrold, 288 Ill. 388, 394, 123 N.E. 563 (1919); Deemer v. Kessinger, 206 Ill. 57, 61, 69 N.E. 28 (1903). The word "heirs" as used by Effie Seymour in her will, was used as a word of limitation and not of purchase, and the second requisite for the application of the rule in Shelley's case is present.
Whether the remainder interest is legal or equitable must depend upon the character of the trust created by Effie Seymour's will. If the trustee was vested with the fee simple title under the trust created by the will, coupled with the power to sell, convey, rent, mortgage, etc., it follows that the life estate limited to William H. Seymour was equitable and the remainder interest given to his "lawful heirs," was likewise equitable the same as the life estate. Nowlan v. Nowlan, 272 Ill. 526, 532, 533, 112 N.E. ...